Application of the Civil Liberties Act to Japanese Peruvians: Seeking redress for deportation and internment conducted by the United States government during World War II, Kulkarni (Note), 5 B.U. Pub. Int. L.J. 309 (Winter 1996).

Changing America: Three Arguments About Asian Americans and the Law, American University Law Review (February, 1996).

* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. [Back]

The purposes of this Act (sections 1989 to 1989d of this Appendix) are to -

(1) acknowledge the fundamental injustice of the evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II;

(2) apologize on behalf of the people of the United States for the evacuation, relocation, and internment of such citizens and permanent resident aliens;

(3) provide for a public education fund to finance efforts to inform the public about the internment of such individuals so as to prevent the recurrence of any similar event;

(4) make restitution to those individuals of Japanese ancestry who were interned;

(5) make restitution to Aleut residents of the Pribilof Islands and the Aleutian Islands west of Unimak Island, in settlement of United States obligations in equity and at law, for -

(A) injustices suffered and unreasonable hardships endured while those Aleut residents were under United States control during World War II;

(B) personal property taken or destroyed by United States forces during World War II;

(C) community property, including community church property, taken or destroyed by United States forces during World War II; and

(D) traditional village lands on Attu Island not rehabilitated after World War II for Aleut occupation or other productive use; (6) discourage the occurrence of similar injustices and violations of civil liberties in the future; and

(7) make more credible and sincere any declaration of concern by the United States over violations of human rights committed by other nations.

Mitsuye Endo, an American citizen, had been granted leave clearance by the War Relocation Authority, but the Western Defense Command would not allow her to re-enter the restricted zone. The Supreme Court, the Court ruled that a loyal American citizen could not be held in a relocation camp against her will.

A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind not of race, creed, or color. He who is loyal is by definition not a spy or a saboteur. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.

Nor may the power to detain an admittedly loyal citizen or to grant him a conditional release be implied as a useful or convenient step in the evacuation program, whatever authority might be implied in case of those whose loyalty was not conceded or established. If we assume (as we do) that the original evacuation was justified, its lawful character was derived from the fact that it was an espionage and sabotage measure, not that there was community hostility to this group of American citizens. The evacuation program rested explicitly on the former ground not on the latter as the underlying legislation shows. The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform an espionage or sabotage measure into something else. That was not done by Executive Order No. 9066 or by the Act of March 21, 1942, which ratified it. What they did not do we cannot do. Detention which furthered the campaign against espionage and sabotage would be one thing. But detention which has no relationship to that campaign is of a distinct character. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if authority for their custody and supervision is to be sought on that ground, the Act of March 21, 1942, offer no support. And none other is advanced. 24 To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though the government conceded their loyalty to this country. We cannot make such an assumption. As the President has said of these loyal citizens: 'Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions and work loyally with the rest of us, making their own valuable contribution to the national wealth and well-being. In vindication of the very ideals for which we are fighting this war it is important to us to maintain a high standard of fair, considerate, and equal treatment for the people of this minority as of all other minorities.' Mitsuye Endo is entitled to an unconditional release by the War Relocation Authority. [Back]

Hirabayashi v. United States 320 U.S. 81(1943)(Full Case)

Hirbayashi, an American citizen of Japanese ancestry, was convicted in the district court of knowingly disregarding restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President. The questions before the court was whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p. m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. . . There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population. . . .Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japane e descent, to the maintenance by Japan of its system of dual citizenship. . . .The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions.

Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions.. . . We cannot say that the war- making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. . . .The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. . . . . Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. . . .Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.. . . We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. 'We must never forget, that it is a constitution we are expounding', 'a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs'. . . The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. . . .What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power.. . .Affirmed. [Back]

Korematsu v. United States, 323 U.S. 214 (1944)(Full Case)

Fred Korematsu was arrested and convicted for not reporting to an assembly center in May 1942 nese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General [323 U.S. 214 , 216] of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari. It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes pustify the existence of such restrictions; racial antagonism never can. . . . In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.. . .They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, '* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.' Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. . .[We] uphold the exclusion order as of the time it was made and when the petitioner violated it.. . . It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified. Affirmed. [Back]

Korematsu v. United States, 584 F.Supp. 1406 (1984).

American citizen of Japanese ancestry petitioned for writ of coram nobis to vacate his 1942 conviction for being in a place from which all persons of Japanese ancestry were excluded pursuant to a civilian exclusion order. The Government filed cross motion to dismiss the prosecution against petitioner. The District Court, held that petitioner was entitled to writ of coram nobis to vacate his conviction where there was substantial support in the record for proposition that Government deliberately omitted relevant information and provided misleading information in the papers before court concerning whether the actions taken were reasonably related to the security and defense of the nation and the prosecution of the war, where Government failed to rebut petitioner's certificate setting forth collateral consequences he believed he suffered and would continue to suffer as result of the 1942 conviction and where Government failed to rebut petitioner's showing of timeliness. Petition granted and countermotion denied.

Yasui vs. United States, 320 U.S. 115 (1943) (Full Case) .

Yasui, an American-born person of Japanese ancestry, was convicted in the district court of an offense of a curfew order . Evidence presented at trial showed that Yasui was born in Oregon in 1916 of alien parents; when he was eight years old he spent a summer in Japan; he attended the public schools in Oregon, and also, for about three years, a Japanese language school; he later attended the University of Oregon, from which he received A.B. and LL.B degrees; he was a member of the bar of Oregon, and a second lieut nant in the Army of the United States, Infantry Reserve; he had been employed by the Japanese Consulate in Chicago, but had resigned on December 8, 1941, and immediately offered his services to the military authorities; he had discussed with an agent of the Federal Bureau of Investigation the advisability of testing the constitutionality of the curfew; and that when he violated the curfew order he requested that he be arrested so that he could test its constitutionality.

. . . [We] hold, as in the Hirabayashi case, that the curfew order was valid as applied to citizens, . . .and the conviction must be sustained. . .. But as the sentence of one year's imprisonment-the maximum permitted by the statute-was imposed after the finding that appellant was not a citizen, and as the Government states that it has not and does not now controvert his citizenship, the case is an appropriate one for resentence in the light of these circumstances. . . . The conviction will be sustained but the judgment will be vacated and the cause remanded to the district court for resentence . . . and to afford that court opportunity to strike its findings as to appellant's loss of United States citizenship. [Back]

Legislative History and Other Documents

Report of the The Commission on Wartime Relocation and Internment of Civilians.

Law Reviews and Other Articles

Changing America: Three Arguments About Asian Americans and the Law, American University Law Review (February, 1996)

This Essay offers some tentative thoughts on what the many Asian American experiences can contribute to the jurisprudence of race.7 It makes three independent but related arguments: (1) Asian Americans demonstrate that color-blindness is a myth; (2) Asian Americans show the dangers of applying social science in the law; and (3) Asian Americans must become involved in the legal process. The arguments share the common theme of examining Asian Americans to test conventional notions about race and the law.

These arguments, of course, extend beyond Asian Americans, but are developed here using them as an example. Each of these arguments can and should be challenged and contested. Taken together, they form another meta-argument regardless of the conclusions that are reached that addressing race is imperative. Failure to discuss race exacerbates racism; it does not cure it. [Back]

More than 2,000 Latin Americans of Japanese descent were forced from their homes in Peru and 12 other countries and detained in the U.S. during World War II. Some of them are seeking reparations, plus punitive damages, in a class action filed against the U.S. government in a Los Angeles federal court. The Civil Liberties Act of 1988 authorized an apology and reparations of $20,000 each to Japanese-Americans who were interned during the war, but the Act applied only to American citizens or permanent U.S. residents.. . . According to a group called "Campaign for Justice," 800 detainees were sent to Japan in prisoner-of-war exchanges; after the war, another 900 were deported to Japan. A few returned to Latin America, and the rest remained in the United States. [Back]

Over the past fifty years, the United States Supreme Court has articulated the constitutional standards for the governmental use of racial classifications by referring repeatedly to its wartime decisions on the Japanese American internment. Those decisions were understood then as being emphatically not about race, but have been understood since as being equally emphatically based upon acquiescence to racism. In the past year, with the most recent race cases that have been handed down by the Court, especially its affirmative action decision, the doctrines that have given substance to the con-stitutional guarantee of equal protection have become increasingly problematic. The awkward development of the doctrines can be traced to their origins.

During World War II, the Supreme Court decided the historic case of Korematsu v. United States. There, the Court approved the internment of Japanese Americans as a racial group without individual determinations of political loyalty. The case is one of the "justly infamous episode[s]" in the history of the American judi-ciary, according to Professor Laurence Tribe. It remains the best known constitutional challenge brought by Asian Americans as well as the most important source of the standard known as "strict scrutiny," which marks the constitutional limits of the public use of racial classifications and private use of racial generalizations. . . .This essay explores the complex relationship between Korematsu and Adarand, and offers a critique of the reasoning used in both cases. The essay argues that Adarand may permit invidious racial classifications to survive constitutional challenge and that its analysis of the standing issues associated with collateral litigation over affirmative action are inconsistent with its resolution of substantive issues of racial discrimination. [Back]

Justice Delayed: The Record of the Japanese American Internment Cases. Book Review. Edited by Peter Irons. Middletown, Connecticur: Wesleyan University Press. 1989.

Peter Irons collects the essential documents and provides a moving narrative of the successful legal challenge to the Supreme Court's 1943 and 1944 decisions upholding the evacuation and internment of 120,000 Americans of Japanese descent after the attack on Pearl Harbor. Irons, a political scientist and attorney who assisted in the recent litigation, chronicles the unprecedented battle to vindicate the three original defendants on the ground that government attorneys suppressed crucial evidence refuting army claims that Japanese Americans, as a racial group, were disloyal. The book contains the Supreme Court opinions, supporting briefs on both sides from the challenge cases, excerpts from oral argument, and the text of the district court and Ninth Circuit opinions vacating the defendants' convictions. The book not only serves as a valuable reference tool for legal scholars, but also offers a cautionary tale of the precarious position of civil rights in times of national crisis. [Back]

Application of the Civil Liberties Act to Japanese Peruvians: Seeking Redress for Departation and Internment Conducted by the United States Government During World War II, Manjusha P. Kulkarni, 5 B.U. PUB. INT. L.J. 309 (1996).

The evacuation and internment of Japanese Americans during World War II finally have made their way into our history books. The injustice of these events perpetrated by the United States government has awakened the conscience of Congress enough to induce it to appropriate redress to the victims. The Civil Liberties Act of 1988 began providing eligible Japanese Americans with an apology from the U.S. government and $20,000 in reparations for the loss of liberty and destruction of property suffered at the hands of U.S. officials. As it did with Japanese Americans, however, the American government also robbed Peruvians of Japanese descent of their freedom during World War II. The U.S. government abducted Japanese Peruvians from their homes in Peru, brought them to the United States, and interned them for the duration of the war. After the war, the U.S. government deported most of these eighteen hundred individuals to Japan. Approximately three hundred individuals remained in the United States, gained permanent residency, and eventually became American citizens. While Japanese Americans have attained redress for the injustice they experienced, the U.S. government has not recognized the similar evacuation and internment of two thousand Peruvians of Japanese descent. These victims have received neither an apology nor reparations. This Note describes the wartime experiences of Japanese Peruvians and discusses possible avenues of redress. When discussing redress options, the Note focuses primarily on those Japanese Peruvians who remained in the United States after the war and became permanent residents or citizens. Part I examines the history of Japanese Peruvians, beginning with their immigration to Peru. . . . Section II analyzes the Civil Liberties Act of 1988 ("the Act"), which authorized reparations to Japanese American internment victims.. . . Section III considers a number of potential redress options for Japanese Peruvians based on the Civil Liberties Act. One approach involves an equal protection challenge to the Act resting on the Due Process Clause of the Fifth Amendment to the Constitution of the United States. Another approach involves Japanese Peruvians claiming retroactive residency through the Immigration and Naturalization Service (INS) doctrine of permanent residency under color of law ("PRUCOL"). A third avenue involves application of the principle of implied waiver, which allows individuals to gain residency without the required documentation. A final option invokes equitable estoppel to prevent the government from claiming that the Japanese Peruvians entered the United States illegally and, therefore, fail to qualify for redress under the Civil Liberties Act. [Back]

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